Note: Decisions of a three-justice panel are not to be
considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2002-443

MAY TERM, 2003

Catherine Piscitelli

v.

David Piscitelli

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APPEALED FROM:

Windsor Family
Court

DOCKET No. 193-8-02 Wrfa

Trial Judge: Hon. Paul F. Hudson

In the above-entitled cause, the Clerk will enter:

Defendant David Piscitelli appeals from the trial court's
final relief-from-abuse order. He argues that the trial court erred in granting
plaintiff's request for relief because
the evidence does not support a conclusion that he placed plaintiff in fear of
" imminent serious physical harm."
We agree, and vacate the court' s
order.

Plaintiff Catherine Piscitelli and defendant are married,
with divorce proceedings pending as of May 2001. The parties currently share
custody of their two minor children. Plaintiff and defendant reside together in
a duplex residence, which they have divided into two units. Plaintiff lives in
the downstairs portion of the duplex, while the children'
s bedrooms and defendant's living area
are on the second level.

In August 2002, plaintiff filed a relief-from-abuse
complaint, alleging that defendant had placed her in
"fear of imminent serious physical
harm" and that there was a danger of
future abuse. In her supporting affidavit, plaintiff alleged that defendant had
eavesdropped on a telephone conversation, followed her when she traveled
out-of-state, swore at her in front of the children, entered her apartment
without her permission and searched through her belongings, and threatened to
destroy gifts purchased by plaintiff'
s boyfriend. Based on this evidence, the court issued a temporary
relief-from-abuse order. The court ordered defendant to refrain from further
abuse, refrain from communicating with plaintiff, and refrain from entering her
apartment and the children' s rooms.

After a hearing, the court made the following findings.
During the parties' marriage,
defendant engaged in behavior that plaintiff perceived as controlling. Plaintiff
has begun dating another man, a friend of the family. Defendant has followed
plaintiff for as much as a weekend. He has harassed plaintiff by
" going on a diatribe, losing control
in front of her and the children, and opening the door into her residence,
walking through her apartment and declaring the place is
" his.'
" He encouraged the children to
violate the court' s temporary
relief-from-abuse order by insisting that they leave the door open between the
two apartments. He accused plaintiff of having a sexual relationship with her
boyfriend and threatened to destroy gifts plaintiff's
boyfriend had purchased. He entered plaintiff'
s apartment and went through her belongings. He threatened to take the house and
children away from plaintiff if she pursued her complaint. He once grabbed
plaintiff by her torso, without her consent, and told her that she had
" that look"
in her eyes, and made a " pass"
at her. Based on these facts, the court concluded that plaintiff had established
by a preponderance of the evidence that she was entitled to a relief-from-abuse
order. This appeal followed.

We review the factual findings of the trial court in the
light most favorable to the prevailing party below, disregarding the effect of
any modifying evidence, and we will not set aside the findings unless they are
clearly erroneous. Coates v. Coates, 171 Vt. 519, 520 (2000) (mem.). We
will uphold factual findings if supported by credible evidence, and we will
uphold the court' s conclusions if
they are supported by the factual findings. Id. In this case, plaintiff
had the burden of proving by a preponderance of the evidence that defendant
" attempt[ed] to cause or caused her
physical harm" or placed her
" in fear of imminent serious physical
harm." 15 V.S.A.
§ §
1101(1)(A) & (B); 15 V.S.A. § 1103(b).

Defendant argues that the evidence does not support the trial
court's conclusion that he physically
harmed plaintiff or placed her in fear of imminent serious physical harm. See 15
V.S.A. § 1101(1)(A) and (B). Defendant
argues that, in the absence of such evidence, the court abused its discretion by
granting plaintiff' s request for a
relief-from-abuse order. He relies on Coates, 171 Vt. 519, in support. In
Coates, we vacated a relief-from-abuse order after concluding that the
evidence did not support a conclusion that defendant had placed plaintiff
" in fear of imminent serious physical
harm." Id. at 521. In that
case, defendant sent plaintiff three graphically violent Christmas song parodies
and indicated that he would be traveling from Florida to Vermont to visit
plaintiff and their minor child. Id. He also told plaintiff that he would
be petitioning the court to modify custody. Id. Plaintiff testified that
she was " kind of disgusted"
by the songs and feared defendant' s
impending visit. Id. She did not testify that she feared imminent
physical harm from defendant. Id. We concluded that, based on this
evidence, the trial court abused its discretion in issuing a relief-from-abuse
order.

We agree that in this case, as in Coates, the court'
s factual findings do not support a conclusion that defendant has placed
plaintiff in fear of imminent serious physical harm. As defendant points out,
plaintiff testified that she initiated her complaint because she wanted her
" privacy."
There is no evidence in the record that defendant has ever threatened to, or has
actually, caused physical harm to plaintiff. The only factual finding that
involves a physical interaction between the parties is the court's
finding that defendant once grabbed plaintiff by the torso and made a
"pass"
at her. This finding is insufficient to satisfy 15 V.S.A.
§ 1101(1)(A) and (B). The court'
s other factual findings do not involve allegations of physical abuse.
" Going on a diatribe,"
for example, does not support a conclusion that plaintiff is in danger of
imminent serious physical harm. Although entering plaintiff's
apartment, and following her on a weekend trip, are certainly invasive acts,
they do not involve the threat of "serious
imminent physical harm." Nor are
defendant' s threats to destroy
property sufficient to support the court'
s conclusion. The purpose of the abuse prevention statute is
"to provide immediate relief to
victims of domestic violence." Rapp
v. Dimino, 162 Vt. 1, 4 (1993); see also, 15 V.S.A.
§ §
1101-1109. There is no indication in the record, or in the court'
s findings, that defendant has physically abused, or threatened to physically
abuse, plaintiff. We therefore conclude that the trial court abused its
discretion in granting plaintiff's
request for a relief-from-abuse order because its factual findings do not
support its conclusion.